China issued freedom of information regualtion

China finally approaches freedom of information jurisdiction
—Decree on release of government information passed on 24 April

The State Council, China’s cabinet, announced on 24 April a long-waited regulation which empowers citizens to access to government information and explicitly requires government departments to be more open in information disclosures to boost official transparency. Premier Wen Jiabao promulgated this administrative regulation named “The Decree of Government Information Openness”(政府信息公开条例), which will take effect since 1 May 2008. Within the Chinese legal system, administrative regulation issued by the State Council is of general applicability, only subordinate to the constitution and the laws passed by the National People’s Congress. And it virtually acts as law in the absence of a law governing a given domain, which has been usually the case during China’s gradual legal reform of public law. In this regard, the Regulation could be seen as a “milestone” in establishing a new regime of citizen’s right of access to government information, given the obstinate culture of secrecy in this ancient country and the persisting behavioural pattern of the bureaucracy in concealing any information that may embarrass the government.

The scope of the Regulation

The regulation applies to governments and their departments at all levels. Government information is defined as information that administrative organs generates or acquires during the process of performing their competence, which precludes the information grasped by the legislative and judicial branch. The content of the Regulation covers the range of government information, release methods and procedure, disputes resolution and performance supervision. Governments are required to take the initiative in releasing information “affects the immediate interests of individuals and groups” or which “ought to be wildly known and demands public participation”. Information subject to this category labelled as “proactive dissemination” includes, inter alia, government’s plan for handling emergencies, government spending, specific fees for public services and results of investigations into environmental protection, public health and food safety. The regulation specifies that local governments are to publicize data on land acquisitions, residence relocations and related compensation. Village authorities will have to publicize information on land use, financial accounting, the operation of rural collective enterprises and the family situations of village residents in order to ensure the fair enforcement of the family planning policy. Officials are bound to effectuate the release within 20 working days after the relevant information generated or altered. Administrative organs at all levels are required to compile information directories, that will include the name, address, telephone numbers and e-mail addresses of departments and people who are responsible for releasing official information.

The regulation also stipulates the ”release on demand” which grants the citizens the right to seek information that has been not included in official announcements through a written inquiry. Upon receiving the inquiry, the administrative staff should respond immediately or within 30 days at the latest.However, the regulation also set wide exemption of information from disclosure without clearly defining the scope and condition of the exemptions. Administrative bodies are prohibited to release information that involves “state secrets, confidential commercial information and individual’s privacy”. Information of the last two categories could be released after the consent of the relevant right holder. And individuals who believe their interests have been harmed by the release of confidential information can sue for compensation.

Each administrative organ is ordered to publicize an annual report over its performance of government information openness before 31 March every year. Government departments will be checked regularly to see whether they are withholding information and the public is encouraged to report information blackouts. In case the government fails to carry out its obligations defined by the regulation, officials responsible should be punished if the violations are “serious”. Nevertheless, it did not stipulate the condition and procedure of such penalties except stipulating that serious offenders could be prosecuted.

One giant leap for institutional reform, yet a small step towards public expectation

Once the Regulation comes into effect, the government transparency will no longer be a “favor” from the government, as it has been during the tentative campaign of “boosting the openness of government administrative affairs”(政务公开)led by the State Council and CPC since 2002, but a duty and statutory obligation whose implementation can be overseen by courts. By compared to many earlier local legislations concerning access to government information, the Regulation bears several features. Firstly, it introduced a more extensive scheme of publication. Governments shall not only disclose their working basis, procedures and results of administrative process, as they did, but also release all the information in their possession subject to legitimate exemptions. Moreover, enterprises and public institutions with functions of administrating public service are also to release the information generated or acquired during the provision of such public service, by referring to the Regulation. Hence public schools, public hospitals and corporation of electricity, gas, heat and public traffic will also enter the radius of citizen’s access right. Secondly, the Regulation introduces a partial test of public interest that the government could still release the information concerning commercial confidentiality or individual privacy, without consent of the right holder, if it deems “withholding the information would gravely injure the public interest”. According to the chief director of the legislative department of the State Council which presided the drafting of the Regulation, information regarding major economic crimes, business fraud and sex offences are examples of cases where the public interest out weights the protection of individual privacy. Notwithstanding the institutional break-through towards administrative transparency, the progress embedded in the Regulation is far less than what the advocates of freedom of information and academics have been expecting for.

The major leap hole is the catch-all wording of exemptions which will inevitably be relied on by bureaucrats to “legalize” their withholding of the formation that should have been legitimately disseminated. The Regulation did not clarify at all what constitutes state secrecy but mechanically referred to the vaguely worded Guarding State Secrecy Act. On the contrary, it vigorously added that information release shall not “endanger the security of the state, the public and the economic or cause social stability”(Art 8), that before any release administrative body should perform scrutiny according to relevant law and regulations on guarding state secrecy, and shall consult competent superior bodies or secrecy guarding authorities when in doubt (Art 14). Therefore the default setting in the government is blockade rather than release of the information that may only slightly involves state secrecy or public security. It actually reverses the principle already asserted by various local legislations that “disclosure is the principle and withholding the exception”. Public interest test is completed absent within this context, which countervails any sparkling innovation of such test in other categories of exemptions. Officials in charge of information disclosure hardly find inducement for proactive disclosure but will be sufficiently motivated for inaction, since the Regulation explicitly installs responsibility for officials who “releases information that should not have been released”(Art 35), which is a strange repetition of clauses available in secrecy laws for a Regulation alleged to arouse bureaucracy’s awareness of administrative transparency. It is reasonable for the public to worry that the Regulation therefore creates chances for government officials to reserve and control information rather than encourage them to make it in public.

It is also disappointing that the Regulation dismisses the idea of introducing independent supervisory authority over the performance of government openness which is elaborated and recommended in the expert’s draft presented by the academics. Common experience from the jurisdictions having freedom of information laws shows that government officials costumed with the culture of secrecy tend to misapply the exemption clauses and ultimately threaten the implementation of FOI laws. Therefore it is essential to control the application of exemptions via review bodies to ensure a largest access right to information for the public. By compare to the court proceedings, independent authorities, such as information commissioner or committee provides more accessible, economic and professional remedy to the information requesters. Unfortunately the Regulation refuses to install a review body exclusively dedicated to monitoring regulation implementation and remedying access right. Now the general office of State Council is responsible for overseeing the overall enforcement of the Regulation, while governments at lower levels can either take their general office or assign other body as competent authority in charge of the supervision. The supervisory department at various levels also participate in the monitoring. While the former is a secretary organ of the government, the latter is a department directed by the government with insufficient independency. Even they may boost the enforcement of the Regulation, they do so in a traditional manner as they carry out other routine duties. Such supervisors share with administrative bodies common position in information disclosure policies, which effectively prevents their impartiality in reviewing the public interest test applied by the supervised and other decisions of “not release”. To the citizen whose information right is denied by the administrative organ, the Regulation simply restated the remedy approaches available in current system: seeking hierarchical review from a superior body, bringing administrative litigation before the court or complaint to supervisory department for punishment of certain officials. Given the inherent resistance against transparency from the bureaucracy as an interest community, it is hard to justify the effectiveness of internal remedy of access right. And considering that governments previously won all cases (though the number is very limited) concerning right of citizen to government information granted by local legislation, citizens may not expect the judges would shortly change their over cautious and conservative attitude towards the protection of freedom of information.

An outcome of bottom-to-up legislation and a starting point for broader civic campaign

The Regulation was a crystal indeed of a difficult confinement. A task force was set up in 1999 within the Chinese Academy of Social Sciences to study legislation on release of government information, and in 2000 it was committed by the Information Office of State Council to draft an administrative regulation rather than an act. The draft was deliberated with adequate reference to current legal framework, transforming the freedom of information system into a more Chinese-style “Government Information Openness” (OGI) institution. Notwithstanding its efficient submission early in 2002 and unanimous calls from the society for government transparency after the SARS event in 2003, the draft seems to have encountered great obstruction and stayed upon the secondary legislative plan of State Council for as long as 3 years. In early 2006, the draft ascended into the approved legislative agenda and was claimed to be publicized by the end of 2006. Yet it was not until January this year that the bill was internally approved by the State Council. The regulation’s aim of demystifying government information has been ironically contrasted by its mysterious drafting process. Unlike English people who actively reflected their views on the Freedom of Information Bill and vividly saw the government’s response as well as the parliamentary debates during the whole legislative process, Chinese citizens take no part in the drafting process of the Regulation, nor do they even know the content of it, except for learning from central news agency in every year the “probable” promulgation of it then encountering an unaccounted postpone. While the central government mulls about national regulation, the flexible procedure of various kinds of local legislation put the local governments in a more advantaged position to institutionalize the right to know. The Guangzhou government, aiming to comply with WTO requirements and to gain from enhanced transparency greater administrative efficiencies, bravely took the lead in formulating the first government information disclosure legislation. Taking effect from the beginning of 2003, this unprecedented local rule not only standardized municipal government information openness practice and, but also introduced revolutionary regime of information rights for citizens, and set up fundamental principles of presumption of openness which raises the standards for compliance. Inspired by the Guangzhou example and the lessons in SARS, the Shanghai people’s government adopted the first rule of release of government information on provincial level in 2004, developing a more sophisticated approach to enlarge citizen’s right of access to information and better organized program to supervise the implementation. These two pioneers stimulate their colleagues in other regions. Similar to the global legislative tide of freedom of information, a domestic legislative wave involved most local governments, even many of the organs of the central government. The Shanghai provisions were especially duplicated in other regional rules with moderate modifications. Up till now, 31 provinces, autonomous regions and municipalities and 36 departments of the State Council have formulated rules for the release of administrative information. 7 provinces have actually developed local laws to govern this. In the absent of unified coordination, the scattered lawmaking converge into an ongoing bottom-to-top movement, which in turn stimulate and the legislation in central level.

Therefore, the Regulation is far from a completion of this legislative campaign rewriting profoundly the nature of Chinese’s right to know. In contrast, it is a starting point of a tougher task to device a coherent regime embracing broader information rights. Compared to other jurisdiction, the one-year preparation term to mobilize all administrative bodies to adapt to the Regulation is an ambitious project. It could be understood as including the intention of present a more liberal international image in the run-up to the 2008 Beijing Olympics. However, the obstruction within the tradition administration system, from resource to personnel, cannot be underestimated if the central government wishes a genuine and effective enforcement of transparency rules. What’s more worrying is that the instrumental value of the Regulation in strengthens central control of local authorities may well prevail over the intrinsic value of access right of citizen for non-surveillance cause. In the press conference of the Regulation, chief drafter from the Legislative Office emphasized the right of access to government information as a move to “improve administrative efficiency and prevent abuses of power”, considering it “help curb corruption at its source, largely reducing its occurrence”. This reason is well illustrated by the requirements over local governments to publicize certain information, as described above. Those kinds of information closely correlate to the stealthy dealings infringing common people’s fundamental rights that involve many local authorities and arouse social unrest. Yet this approach may end up a centralized control and scrutiny of all information. And the information which is requested for profit earning or other private purpose may be deemed as vexatious and legally shielded under the broad exemptions emplaced by the Regulation. Furthermore, the clauses more favourable to citizen’s access right in local rules, such as those of Shanghai and Guangzhou may run in contrast with the conservative provision of the Regulation. The hierarchical primacy of administrative regulation over local rules will possibly sacrifice these progressive norms during the harmonization of central-local legislation bloc may sacrifice. In this regard, the Regulation beats its own aim at encouraging more release of government information. Last but not lease, the Regulation does not, not surprisingly, encourage civic campaign for more government transparency. Long excluded from the regime construction of access right, civil society should grasp the opportunity of preparation period of this Regulation in expressing their critics and comments for better performance. Individuals should vigorously make full use of the more liberal norms in local legislation to seek government information. Though disfavoured by officials and authorities, academics and lawyers should take the responsibility in learning from the strategies of the NGOs in other FOI jurisdictions and in bringing testing cases before the courts claiming more extensive access rights. The regulations do not define the boundary of access and retention in the favour of citizens, but at least they provide a context in which people can set out their arguments. How well the rule will be in protecting freedom of information is ultimately dependent on how serious the citizens regard their rights to know, and how intent they strive for it. This rings especially true for Chinese people.